Citation Nr: 0516266
Decision Date: 06/15/05 Archive Date: 06/27/05
DOCKET NO. 02-20 778 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for hearing loss.
2. Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
David S. Nelson, Counsel
INTRODUCTION
The veteran served on active duty from June 1975 to December
1977.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from a March 2003 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.
This case was before the Board in August 2004 and was
remanded for the purpose of affording the veteran a VA
audiological examination.
In March 2004 the veteran presented testimony at a video
conference hearing before the undersigned Veterans' Law
Judge; a transcript of that hearing is of record.
FINDING OF FACT
Hearing loss and tinnitus were not present during the
veteran's active military service or within one year
thereafter, and are not otherwise shown to be related to the
veteran's military service or to any incident during service.
CONCLUSION OF LAW
Hearing loss and tinnitus were not incurred in or aggravated
by active service and may not be presumed to have been
incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 2002);
38 C.F.R. §§ 3.303, 3.307, 3.309 (2004).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA) provides
that VA will make reasonable efforts to notify a claimant of
the relevant evidence necessary to substantiate a claim for
benefits under laws administered by the VA. The VCAA also
requires the VA to assist a claimant in obtaining that
evidence. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.
First, the VA has a duty under the VCAA to notify a claimant
and any representative of the information and evidence needed
to substantiate a claim. Collectively, the multiple RO
decisions issued in connection with the veteran's appeal have
notified him of the evidence considered, the pertinent laws
and regulations and the reasons his claim was denied. In
addition, a letter sent to the veteran dated in January 2003,
specifically notified the veteran of the substance of the
VCAA, including the type of evidence necessary to establish
entitlement to the benefits sought and whether the veteran or
VA bore the burden of producing or obtaining that evidence or
information. Quartuccio v. Principi, 16 Vet. App. 183
(2002).
Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b) the VCAA letters of record essentially satisfied
the notice requirements by: (1) Informing the appellant about
the information and evidence not of record that is necessary
to substantiate the claim; (2) informing the appellant about
the information and evidence the VA will seek to provide;
(3) informing the appellant about the information and
evidence the claimant was expected to provide; and (4)
informing the appellant to provide any evidence in the
appellant's possession that pertains to the claim, or
something to the effect that the claimant should "give us
everything you got pertaining to your claim." This "fourth
element" of the notice requirement comes from the language of
38 C.F.R. § 3.159(b)(1). The Board here notes that VCAA
notice in this case was provided to the veteran prior to the
initial AOJ adjudication denying the claim on appeal.
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
VA also has a duty to assist a claimant in obtaining evidence
necessary to substantiate a claim. In this regard, the
veteran's service medical records are associated with the
claims file as are VA medical records. In addition, in
September 2004 VA obtained a medical opinion to assist in
answering the medical questions presented in this appeal.
The veteran has not made the RO or the Board aware of any
additional evidence that needs to be obtained in order to
fairly decide the appellant's appeal. Therefore, the Board
finds that all relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.
The veteran contends that his hearing loss and tinnitus are
related to acoustic trauma he suffered from weapons fire
while serving on a Navy gunship.
Service connection will be granted if it is shown that the
veteran suffers from disability resulting from an injury
suffered or disease contracted in line of duty, or for
aggravation of a preexisting injury suffered or disease
contracted in line of duty, in active military service. 38
U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury occurred
in service alone is not enough; there must be chronic
disability resulting from that injury. If there is no showing
of a resulting chronic condition during service, then a
showing of continuity of symptomatology after service is
required to support a finding of chronicity. 38 C.F.R. §
3.303(b). Service incurrence for certain chronic diseases,
such as organic diseases of the nervous system, will be
presumed if they become manifest to a compensable degree
within the year after service. 38 C.F.R. §§ 3.307, 3.309.
Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Impaired hearing will be considered to be a disability when
the auditory threshold in any of the frequencies 500, 1000,
2000, 3000, and 4000 hertz, in ISO units, is 40 decibels or
greater; or when the auditory thresholds for at least three
of these frequencies are 26 decibels or greater; or when
speech recognition scores using the Maryland CNC Test are
less than 94 percent. 38 C.F.R. § 3.385.
Service medical records reveal no complaints or diagnoses of
hearing loss or tinnitus. The veteran's December 1977
service separation examination noted that the veteran's ears
(including auditory acuity) were normal. The veteran denied
hearing loss or problems with his ears on the medical history
portion of his December 1977 service separation examination.
The Board finds that the preponderance of the evidence is
against the veteran's claims. The veteran's hearing has been
within the above VA definition of normal limits throughout
service and on VA audiological examinations after discharge,
including in July 1989, December 2002, and September 2004.
Consequently, service connection for hearing loss is not
warranted.
While the medical records indicate that the veteran currently
suffers from tinnitus, clinical evaluation performed at the
veteran's December 1977 service separation examination noted
no such disability. In fact, the veteran specifically denied
any problems with his ears at the time of his separation from
service. Tinnitus was also not complained of or noted on the
July 1989 VA examination. Further, a VA physician (September
2004) has indicated, upon a review of the veteran's claims
file, that the veteran's tinnitus is not related to his
military service. The Board observes that there is no
contrary opinion of record.
As the medical records reveal that the veteran was not
diagnosed with tinnitus within one year of his separation
from active duty service, entitlement to service connection
under the presumptive provisions of 38 C.F.R. §§ 3.307, 3.309
are not for application in this case.
The Board has also considered the veteran's statements and
his March 2004 video hearing testimony, which have been given
weight as to his observation for symptoms and limitations
caused by his hearing loss and tinnitus. It does not appear,
however, that the veteran is medically trained to offer any
opinion as to causation. See Espiritu v. Derwinksi, 2 Vet.
App. 492, 494-495 (1992) (laypersons may be competent to
provide an eyewitness account of a veteran's visible
symptoms, but they are not capable of offering opinions as to
medical matters). The Court has also held that "where the
determinative issue involves medical causation or a medical
diagnosis, competent medical evidence is required."
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).
Based on the foregoing, entitlement to service connection for
the disabilities on appeal is not warranted.
As the preponderance of the evidence is against the veteran's
claims, there is not an approximate balance of positive and
negative evidence regarding the merits of the veteran's
claims that would give rise to a reasonable doubt in favor of
the veteran. Accordingly, the benefit-of-the-doubt rule is
not applicable, and the claims are denied. Gilbert v.
Derwinski, 1 Vet. App. 49, 54-56 (1990).
ORDER
Service connection for hearing loss is denied.
Service connection for tinnitus is denied.
____________________________________________
V.L. Jordan
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs